BELSER v. ASTRUE

Filing 13

MEMORANDUM AND ORDER. The decision of the defendant Commissioner is VACATED and the matter is REMANDED to the Commissioner for further proceedings. The clerk will enter judgment for plaintiff. Signed by MAGISTRATE JUDGE CHARLES J KAHN, JR on September 10, 2012. (pmc)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
ADRIAN BELSER,
Plaintiff,
v.

Case No. 5:12cv49/CJK

MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
MEMORANDUM AND ORDER
This case is now before the court pursuant to 42 U.S.C. § 405(g), for review
of a final determination of the Commissioner of Social Security (“Commissioner”)
denying Adrian Dwayne Belser’s application for Supplemental Security Income
benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-83. Mr.
Belser will be referred to by name, as claimant, or as plaintiff. The parties have
consented to Magistrate Judge jurisdiction, pursuant to 28 U.S.C. § 636(c), and
FEDERAL RULE OF CIVIL PROCEDURE 73, for all proceedings in this case, including
entry of final judgment. (Docs. 6 & 7). Upon review of the record before this court,
I conclude that certain findings of fact and determinations of the Administrative Law
Judge (ALJ) are not supported by substantial evidence.

The decision of the

Commissioner, therefore, will be vacated and remanded for further proceedings.

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STANDARD OF REVIEW
A federal court reviews a Social Security disability case to determine whether
the Commissioner’s decision is supported by substantial evidence and whether the
correct legal standards were applied by the ALJ. See Lewis v. Callahan, 125 F.3d
1436, 1439 (11th Cir. 1997); see also Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th
Cir. 1991) (“[T]his Court may reverse the decision of the [Commissioner] only when
convinced that it is not supported by substantial evidence or that proper legal
standards were not applied.”). Substantial evidence is “‘such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.’” Richardson
v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197 (1938)). With reference to other standards of review, the Eleventh Circuit
has said, “‘Substantial evidence is more than a scintilla . . . .’” Somogy v. Comm’r of
Soc. Sec., 366 F. App’x 56, 62 (11th Cir. 2010) (quoting Lewis, 125 F.3d at1439).
Although the ALJ’s decision need not be supported by a preponderance of the
evidence, “it cannot stand with a ‘mere scintilla’ of support.” Hillsman v. Bowen, 804
F.2d 1179, 1181 (11th Cir. 1986). The reviewing court “‘may not decide the facts
anew, reweigh the evidence, or substitute [its] judgment for that of the Secretary[.]’”
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (quoting Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)). Nevertheless, a reviewing court may
not look “only to those parts of the record which support the ALJ[,]” but instead
“must view the entire record and take account of evidence in the record which
detracts from the evidence relied on by the ALJ.” Tieniber v. Heckler, 720 F.2d 1251,
1253 (11th Cir. 1983). In sum, review is deferential to a point, but the reviewing
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court conducts what has been referred to as “an independent review of the record.”
Flynn v. Heckler, 768 F.2d. 1273, 1273 (11th Cir. 1985); see also Getty ex rel. Shea
v. Astrue, No. 2:10–cv–725–FtM–29SPC, 2011 WL 4836220 (M.D. Fla. Oct. 12,
2011); Salisbury v. Astrue, No. 8:09-cv-2334-T-17TGW, 2011 WL 861785 (M.D.
Fla. Feb. 28, 2011).1 The recitation of medical and historical facts of this case, as set
out below, is based upon my independent review.
The Social Security Act defines a disability as an “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). To qualify as a disability, the physical or mental impairment must be
so severe that the plaintiff is not only unable to do her previous work, “but cannot,
considering [her] age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A).
Pursuant to 20 C.F.R. § 416.920(a)-(g), the Commissioner analyzes a
supplemental security income disability claim in five steps:
1. If the claimant is performing substantial gainful activity, he is not disabled.
2.

If the claimant is not performing substantial gainful activity, his

impairments must be severe before he can be found disabled.
3. If the claimant is not performing substantial gainful activity and he has
severe impairments that have lasted or are expected to last for a continuous period of

1

The Eleventh Circuit speaks not only of independent review of the administrative record,
but reminds us it conducts de novo review of the district court's decision on whether substantial
evidence supports the ALJ's decision. See Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253,
1260 (11th Cir. 2007); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002).
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at least twelve months, and if his impairments meet or medically equal the criteria of
any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant is
presumed disabled without further inquiry.
4. If the claimant’s impairments do not prevent him from doing her past
relevant work, she is not disabled.
5. Even if the claimant’s impairments prevent him from performing his past
relevant work, if other work exists in significant numbers in the national economy
that accommodates her residual functional capacity and vocational factors, he is not
disabled.
In this case, the ALJ concluded the inquiry at the second step, finding claimant
does not have a severe impairment or combination of impairments. Claimant bears
the burden of establishing a severe impairment that keeps him from performing him
past work. Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). If the claimant
does not have a severe, medically determinable impairment or combination of
impairments, he is not disabled. See 20 CFR § 416.920(c) (“If you do not have any
impairment or combination of impairments which significantly limits your physical
or mental ability to do basic work activities, we will find that you do not have a
severe impairment and are, therefore, not disabled.”).
FINDINGS OF THE ALJ
In the written decision the ALJ made a number of findings relative to the issues
raised in this appeal:
1.

The claimant has not engaged in substantial gainful activity since April 15,
2008, the application date.

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2.

The claimant has a medically determinable impairment–hypertension,
controlled with medication and no functional limitations.

3.

The claimant does not have an impairment or combination of impairments that
significantly limits, or has so limited, the ability to perform basic work-related
activities for twelve consecutive months. The claimant does not, therefore,
have a severe impairment or combination of impairments.

4.

The claimant has not been under a disability, as defined by the Social Security
Act, since April 15, 2008.

T. 12-16.2
On review of the decision, plaintiff argues that substantial evidence does not
support the finding that he does not suffer from a severe impairment. (Doc. 11, p.
2). In particular, plaintiff argues that his hypertension is a severe impairment, and
that his anxiety is a medically determinable impairment. (Doc. 11, pp. 8-13). Based
upon these assertions, plaintiff concludes that the ALJ erred by concluding that
plaintiff has not been under a disability for at least twelve consecutive months.
FACT BACKGROUND AND MEDICAL HISTORY
This section will focus on the evidence involving hypertension and anxiety, as
that is where plaintiff places his focus. The ALJ begins his review of claimant’s
medical records as to hypertension with claimant’s hospitalization in October 2007
for hypertension.

T. 12.

Plaintiff also starts his medical review with the

“hypertensive crisis” of October 2007. (Doc. 11, p. 9).

2

The administrative record, as filed by the Commissioner, consists of eleven volumes (doc.
8-2 through 8-12 ), and has 485 consecutively numbered pages. References to the record will be by
“T.” for transcript, followed by the page number.
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On October 1, 2007, Mr. Belser presented to Northwest Florida Community
Hospital in “severe hypertensive crisis.” T. 290. In the emergency room, claimant
had an episode of atrial fibrillation with uncontrolled hypertension. T. 290. A
nuclear stress study was positive for borderline ejection fraction, suspected scarring
on the inferior wall, and possible single vessel disease. T. 289. Claimant tolerated
the study, and was asymptomatic other than shortness of breath and fatigue. T. 290.
While in the emergency room, plaintiff had a nitroglycerin drip which controlled the
crisis. T. 275. Plaintiff told Dr. Samuel Ward that he uses blood pressure medicine
“just once or twice a week.” T. 275. Upon discharge, Dr. Ward assessed the
hypertension as “resolved.” T. 275. Dr. Ward advised claimant to continue home
medications as directed and to maintain a low sodium diet. T. 275.
Claimant again entered the hospital on February 6, 2008, with elevated blood
pressure. T. 256. Blood pressure was controlled by the time of discharge the next
day. T. 256. The chart notes plaintiff had not taken his medicine for three to four
days. T. 257. The admission note also says, “He has been noncompliant in the past
with his medication for his high BP. T. 257.
Dr. Mohammad Yunus did an initial history and physical examination on April
21, 2008. T. 348-349. Dr. Yunus noted blood pressure is uncontrolled “with multiple
medications,” and the Toprol was doubled. The doctor also added Hydralazine. T.
349. At a follow-up visit on May 14, 2008, blood pressure was 136/76, and noted as
“better controlled.” T. 347. Dr. Yunus continued to diagnose severe essential
hypertension. T. 347.
On June 13, 2008, Dr. Yunus recorded blood pressure of 192/124. T. 346.
Claimant stated that “when he has the patch and takes all his BP meds, he has good

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control.” T. 346. Dr. Yunus noted the patient needs monthly refills. T. 346.
Claimant’s blood pressure on July 11, 2008 was at 213/113. T. 345. Claimant stated,
however, that blood pressure had been “controlled at home.” T. 345.
On August 11, 2008, and September 11, 2008, plaintiff’s blood pressure was
quite high, and Dr. Yunus continued to assess severe hypertension. T. 336, 344. At
the September 11 visit, Dr. Yunus charted that claimant had just taken his blood
pressure medication. T. 336. In a letter to Social Security dated September 17, 2008,
Dr. Yunus observed, “Pts B/P is constantly elevated, which effects his work and all
other aspects of daily living.” T. 335. Previously, on April 21, 2008, Dr. Yunus
wrote a brief report stating, with regard to claimant, “His conditions, that include
Severe Hypertension, and COPD warrant him currently unsuitable for any type of
employment.” T. 362.
In November 2009, plaintiff again entered Northwest Florida Community
Hospital. T. 444-445, 242. Blood pressure was elevated, and plaintiff reported he
was taking Clonidine at home. T. 444. Additional Clonidine, administered in the
emergency room, lowered the blood pressure. T. 444. Upon discharge on November
25, the chart shows blood pressure was controlled while in the hospital. T. 242. The
discharge physician took note that plaintiff’s Hydralazine “might bottom him out,”
so the doctor prescribed other medications for the hypertension. T. 242. Plaintiff was
advised to take his Clonidine and check blood pressure one hour later. T. 242.
Dr. Abdel Bayoumy assumed care of Mr. Belser in May of 2009 and provided
treatment until July of 2010, or right up to the time of the ALJ hearing. T. 370-443.
At the initial visit, claimant’s blood pressure was 220/158. T. 372. In a later entry,
Dr. Bayoumy noted hypertension as “controlled,” T. 374, but subsequently, the

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doctor stated that hypertension was uncontrolled. T. 388, 390. On later visits,
however, the blood pressure status returned to “controlled” with medication. T. 392,
394, 396, 398, 400, 408. The chart does note uncontrolled blood pressure on some
occasions, and on one of those visits, the doctor appears to have noted patient was off
medication for a “couple days.” T. 410. Back on Clonidine, and weeks later,
claimant’s blood pressure was at 134/82. T. 412.
Concerning mental status, George Horvath, Ph.D., performed a clinical
evaluation on June 16, 2008. T. 300-302. Mr. Belser had no history of treatment for
mental health issues. He said that a couple of weeks earlier, he had become “anxious
and afraid.” T. 300-301. Dr. Horvath found claimant had normal attention and
concentration, was cooperative, and had depressed mood and flat effect. T. 301.
Intelligence and fund of knowledge appeared average. T. 301. Although diagnosing
anxiety and adjustment disorders, Dr. Horvath saw “no psychological reasons why
[claimant] cannot work.” T. 302. A state agency consultant found a documented
medically determinable impairment. T. 308, 315. The same consultant characterized
the impairment as “not severe.” T. 303. This examiner noted in a statement to a
Social Security examiner, that claimant had no mental health difficulties that would
interfere with the ability to return to work. T. 315.
The Psychiatric Review Technique, completed by James L. Meyers, Psy.D.,
also found a consistent pattern of findings characteristic of adjustment disorder with
depressed mood and anxiety disorder. T. 332. According to Dr. Meyers, the
“consistent pattern of findings [is] characteristic of this type of [medically
determinable impairment].” T. 332. Dr. Meyers found no restrictions of activities of
daily living attributable to mental health. T. 332.

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Mr. Belser testified on his own behalf at the ALJ hearing, which took place in
July of 2010. T. 30-50. Sometimes he can’t tell when his blood pressure goes up.
The noticeable symptoms of his high blood pressure include chest tightness, nausea,
and palpitations. T. 33-34. If he is real calm, “not too active,” he can keep his
pressure more stable. T. 36. He has noticeable episodes about every two weeks. T.
37. The hypertension affects his energy level, and he takes regular B-12 shots for
fatigue and exhaustion. T. 38-39. Claimant uses Xanax, an anti-anxiety medication,
in an attempt to keep himself calm, so as not to acerbate the blood pressure issue. T.
T. 39-40. Sometimes the blood pressure leads to blurred vision, to the extent claimant
cannot “read the writing you have on the paper.” T. 40.
ANALYSIS
At step two of the sequential analysis, 20 C.F.R. § 416.920(a)-(g), the ALJ
must determine whether the claimant has a severe impairment that keeps her from
performing her past work. See 20 C.F.R. § 1520(c). The burden at this step is on the
claimant.

See Chester, 792 F.2d at 131.

As to “severe impairment,” the

Commissioner’s Regulations provide:
What we mean by an impairment(s) that is not severe.
(a) Non-severe impairment(s). An impairment or combination of
impairments is not severe if it does not significantly limit your physical
or mental ability to do basic work activities.
(b) Basic work activities. When we talk about basic work activities, we
mean the abilities and aptitudes necessary to do most jobs. Examples of
these include-(1) Physical functions such as walking, standing, sitting,
lifting, pushing, pulling, reaching, carrying, or handling;
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(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering simple
instructions;
(4) Use of judgment;
(5) Responding appropriately to supervision, co-workers
and usual work situations; and
(6) Dealing with changes in a routine work setting.
20 C.F.R. § 404.1521. The Commissioner has adopted an interpretive ruling that
specifically addresses how to determine whether medical impairments are severe.
The ruling provides in part:
As explained in 20 CFR, sections 404.1520, 404.1521, 416.920(c), and
416.921, at the second step of sequential evaluation it must be
determined whether medical evidence establishes an impairment or
combination of impairments “of such severity” as to be the basis of a
finding of inability to engage in any SGA [substantial gainful activity].
An impairment or combination of impairments is found “not severe” and
a finding of “not disabled” is made at this step when medical evidence
establishes only a slight abnormality or a combination of slight
abnormalities which would have no more than a minimal effect on an
individual’s ability to work even if the individual’s age, education, or
work experience were specifically considered (i.e., the person’s
impairment(s) has no more than a minimal effect on his or her physical
or mental ability(ies) to perform basic work activities). Thus, even if an
individual were of advanced age, had minimal education, and a limited
work experience, an impairment found to be not severe would not
prevent him or her from engaging in SGA.
SSR 85-28, 1985 WL 56856, at *3 (1985).

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As applied, the step two severity determination is a threshold inquiry used to
screen out “trivial” claims, meaning an impairment is not severe “only if it is a slight
abnormality which has such a minimal effect on the individual that it would not be
expected to interfere with the individual’s ability to work, irrespective of age,
education, or work experience.” Brady v. Heckler, 724 F.2d 914, 920 (11th Cir.
1984); see also Bowen v. Yuckert, 482 U.S. 137, 145 n.5 (1987); Stratton v. Bowen,
827 F.2d 1447, 1453 (11th Cir. 1987); McDaniel v. Bowen, 800 F.2d 1026, 1031
(11th Cir. 1986). Generally speaking, a claimant needs to show only that her
“impairment is not so slight and its effect is not so minimal.” McDaniel, 800 F.2d at
1031. Emphasizing the threshold nature of the step two finding, the McDaniel court
observed that the proper standard “allows only claims based upon the most trivial
impairments to be rejected.” See id. Accordingly, “severe impairment” is a “de
minimis requirement which only screens out those applicants whose medical
problems could ‘not possibly’ prevent them from working.” Stratton, 827 F.2d at
1452 n.9 (quoting Baeder v. Heckler, 768 F.2d 547, 551 (3d Cir. 1985)). Where a
claimant has alleged several impairments, the Commissioner has a duty to consider
the impairments in combination and to determine whether the combined impairments
render the claimant disabled. Wilson, 284 F.3d at 1224. This requirement is met if
the ALJ states that the claimant “did not have an impairment or combination of
impairments ” that would amount to a disability. Id. at 1224–25.
Here, plaintiff argues that the medical records in evidence demonstrate the
error of the ALJ’s conclusion that the hypertension could be controlled with
medication and posed no functional limitations. (Doc. 11, p. 8). Plaintiff further
takes issue with the ALJ’s focus upon “two occasions in the record” where plaintiff

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said he had failed to comply with his medication regimen. (Doc. 11, p. 8). Before
making a finding of noncompliance with medication, says plaintiff, the ALJ should
have considered Mr. Belser’s financial situation and ability to afford the required
medications. (Doc. 11, pp. 8-9).
The Eleventh Circuit has explained the applicable rules, where a question of
claimant’s noncompliance with medical directions becomes an issue:
The regulations provide that refusal to follow prescribed medical
treatment without a good reason will preclude a finding of disability.
See 20 C.F.R. § 416.930(b). “A medical condition that can reasonably
be remedied either by surgery, treatment, or medication is not
disabling.” Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir. 1987)
(footnote omitted); see Epps v. Harris, 624 F.2d 1267, 1270 (5th Cir.
1980). In order to deny benefits on the ground of failure to follow
prescribed treatment, the ALJ must find that had the claimant followed
the prescribed treatment, the claimant's ability to work would have been
restored. See Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987);
Patterson v. Bowen, 799 F.2d 1455, 1460 (11th Cir. 1986). This finding
must be supported by substantial evidence. Patterson, 799 F.2d at 1460;
see Jones v. Heckler, 702 F.2d 950, 953 (11th Cir. 1983).
Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988).
The Eleventh Circuit also recognizes an exception where the plaintiff cannot
afford treatment or can find no way of obtaining it. Id. (citing Taylor v. Bowen, 782
F.2d 1294, 1298 (5th Cir. 1986)). If one's disability can be cured by treatment or
compliance, yet such treatment is not financially available, the condition is disabling
in fact and continues to be disabling in law. Id., at n. 5. As more recently stated by
the Eleventh Circuit, "when an ALJ relies on noncompliance as the sole ground for
denial of disability benefits, and the record contains evidence showing that the
claimant is financially unable to comply with prescribed treatment, the ALJ is
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required to determine whether the claimant was able to afford the prescribed
treatment." Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003).
The financial inability argument holds no sway here. The claimant in Dawkins
testified at the administrative hearing that she was unable to take her prescribed
medication because she could not always afford to refill her prescription. Dawkins,
848 F.2d at 1213; see also Anderson v. Astrue, 8:11-CV-234-T-24MAP, 2012 WL
570951, at *2 n. 5 (M.D. Fla. Feb. 3, 2012) (“A distinguishing fact between Dawkins
and the instant case is that the claimant in Dawkins testified at the administrative
hearing that the reason for failing to take her medication was because she could not
afford it.”). Here, plaintiff did not seriously contend that his sole reason for
noncompliance was financial. The only evidence cited in plaintiff’s memorandum
deals with his failure to follow up with a kidney specialist.3 (Doc. 11, p. 6); T. 37.
Moreover, the record is replete with instances where plaintiff affirmed he was using
his blood pressure medications.
Going to the substance of the argument, plaintiff states that substantial
evidence will not support the ALJ’s finding that the hypertension was adequately
controlled with medication and posed no functional limitations. T. 12. In support of
this conclusion, the ALJ cited two hospital entries, October 4, 2007, and February 6,
2008, indicating noncompliance with medications. T. 12. At the October 2007
admission, Dr. Ward charted that plaintiff said he uses his blood pressure medication
only once or twice a week. T. 275. The entry does not state the frequency of use that
3

At the hearing, counsel asked Mr. Belser whether “there were time periods you couldn’t
afford to get all the medicines you needed.” T. 47. Claimant responded to this direct question in an
evasive manner, beginning to talk about his wife’s military Tri-Care. T. 48. This evidence does not
raise a serious question of financial ability.
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had been prescribed. In the February entry, the doctor noted three to four days of not
taking medicine and that Mr. Belser had been noncompliant in the past. T. 256.
The ALJ’s finding that claimant’s hypertension was adequately controlled with
medication, relying as it does on these two charting entries, is not supported by
substantial evidence. As for the October admission, the chart is cryptic at best, and
does not identify a pattern of noncompliance, nor does it directly associate the severe
hypertensive crisis, noted upon admission, with noncompliance. The ALJ’s intuition
in this regard, although undoubtedly in good faith, does not substitute for evidence.
The reference in the February chart to past noncompliance could well have been
spurred by review of the October chart, and the use by the admitting physician of the
phrase “in the past” does not appear intended to refer specifically to the present
situation. Dr. Ward appears to have made both entries.
Also, in November of 2009, claimant again entered the hospital. T. 242-243;
444-445. On November 25, the discharge summary notes plaintiff had been taking
his Clonodine and blood pressure was fluctuating. T. 242. Upon admission, plaintiff
received more Clonodine, as well as a Catapres patch and Norvasc. T. 246. The
admission chart, under “Current Medications on Admission,” indicates claimant was
using Clonodine, Hydralazine, and Norvasc, all identified as anti-hypertensive drugs.
T. 243.

Evidence of record for that admission does not suggest medication

noncompliance.
The medical evidence of severe hypertension is consistent throughout the chart.
During hospitalizations, the blood pressure was controlled by aggressive use of
multiple drugs. Two isolated charting entries, one of which may have been repetitive

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of another, does not support a finding that noncompliance is the “but for” factor in
claimant’s severe hypertension.4
The ALJ order notes, “Claimant admitted on June 13, 2008, that when he takes
his medication, he has good blood pressure control. Obviously, he is non-compliant.”
T. 17. The chart entry referenced by the ALJ was made by Dr. Yunus: “He states that
when he has the patch and takes all his BP meds, he has good control.” T. 340. Only
one month before, however, Dr. Yunus had observed that claimant has “severe
hypertension with multiple medications. Still his BP is not controlled.” T. 342. The
doctor added additional medication. T. 342. At the initial visit with Dr. Yunus, in
April, the doctor had noted the patient has severe hypertension and has been taking
multiple medications to control blood pressure. T. 343. One month after the June 13
note, Dr. Yunus’ chart reflects blood pressure of 213/113, and that the patient had
said blood pressure was controlled at home. T. 345. Two months after the note that
gave the ALJ such pause, Dr. Yunus assessed severe essential hypertension
(186/112), and made no note of noncompliance or new medications.
Allowing appropriate deference to the ALJ, the conclusion of “obvious”
noncompliance is just not supported by substantial evidence.

Instead, the

longitudinal medical evidence strongly suggests fluctuating, and often uncontrolled,
blood pressure, even with medication. Substantial evidence does not support a
finding that, because claimant’s blood pressure was stabilized during inpatient
treatments, he should somehow be held at fault for those times when he was not

4

Although not mentioned by the ALJ, I have not overlooked Dr. Bayoumy’s note that the
patient was off meds for a couple of days. T. 410. The same doctor’s chart shows that claimant had
dramatically fluctuating blood pressure.
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hospitalized and his blood pressure was uncontrolled. Dr. Bayoumy’s chart, the most
recent evidence, shows a pattern of great fluctuation between controlled and
uncontrolled blood pressure, with only one offhand comment concerning a couple of
days of being off medications. In sum, although the evidence will certainly support
a finding that Mr. Belser does not always take his blood pressure medicine, that does
not equate in this case to willful refusal to follow medical advice. Moreover, the
evidence does not support a conclusion that the limited noncompliance reflected in
the record is the straw that broke the camel’s back with regard to plaintiff’s ability to
work. See Dawkins, 848 F.2d at 1213 (“[T]he ALJ must find that had the claimant
followed the prescribed treatment, the claimant's ability to work would have been
restored.”). Considering the low bar of “severe impairment” for disability purposes,
the ALJ erred by not properly evaluating plaintiff’s severe hypertension. Although
the record clearly documents instances of medication noncompliance, these instances
must be evaluated in light of the entire medical chart. The ALJ did not do that.
I find no error in the ALJ’s determination that claimant’s anxiety disorder has
not been show to be a severe impairment. T. 15. The ALJ correctly noted that
although claimant saw a consultative examiner, the record does not otherwise reflect
treatment for any significant disorder. The consultant found no psychological
problem that would interfere with work. Moreover, claimant’s own testimony does
not support a finding of a severe medically determinable mental impairment.
Nevertheless, as this matter will be remanded, claimant will not be precluded from
submitting new evidence of mental status, should the same be available and
temporally relevant.
It is therefore ORDERED:

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The decision of the defendant Commissioner is VACATED and the matter is
REMANDED to the Commissioner for further proceedings. The clerk will enter
judgment for plaintiff.
At Pensacola, Florida, this 10th day of September, 2012.

/s/

Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.
UNITED STATES MAGISTRATE JUDGE

Case No: 5:12cv49/CJK